When Supreme Court Justice Lord Dyson gave the lead ruling in the case of Melanie Rabone, he was obliged to wrestle with a legal submission by an NHS trust about what an “immediate risk to life” was – and it took some considerable untangling and hasn’t been widely understood, in my view. This question – about what it actually means – was discussed recently on social media by some police officers, mental health professionals and service users alike with agreement things remained unclear or confusing. I’ve done a post on what an immediate risk to life is but I didn’t focus as much as I could have done on what “present and continuing” means, so I thought a post on it may add value for some because it’s an important qualification to understand.
Melanie tragically died by suicide in 2005 after being allowed to leave a mental health unit against clinical recommendations she be detained under the MHA if she tried to leave. She had been a voluntary patient in the hospital and assessed whilst there as being at a 5-20% risk of suicide, if she left. Following her suicide, Melanie’s parents brought legal action against the NHS trust for neglect and a breach of Melanie’s Article 2 ECHR (A2) rights. The trust admitted neglect but denied an article 2 breach. It is this latter point on which I’ll focus.
The NHS trust argued two things about A2 we need to be concerned about here –
- A2 ECHR obligations do not apply to voluntary mental health patients at all, they said.
- Even if A2 obligations can apply in principle, the so-called ‘operational duty’ under A2 was not engaged in this particular case because Melanie was not at “imminent” risk of suicide and therefore, it was not an “immediate risk to life”.
The court quickly found A2 obligations can apply to voluntary patients and they then turned their attention to this operational duty and whether it applied to Melanie because of the argued lack of imminence.
IMMEDIATE v IMMINENT
The NHS argued this point because they submitted, for an “immediate” risk to be in play, someone’s death must be “imminent”. The Court of Appeal in Melanie’s case had already rejected this argument but it was placed before the Supreme Court for a final ruling with the NHS still pushing this line of thought.
“Immediate versus imminent” is one of two points at heart of what this post seeks to nail down and that phrase “present and continuing” is the other. Because both are carefully addressed by Lord Dyson, I’m going to cut / paste rather more of a the legal judgment than I would usually be comfortable with. In this particular post, I do think it’s really well worth reading a few paragraphs of what Lord Dyson actually said – and I admit to having to read it more than once. It helps outline his thinking and you must remember, the other Supreme Court justices in this case supported his lead judgment entirely.
The bold text in the six paragraphs which follow are my emphasis. If you just take the bold sentences together, it summarises the most important parts of what is being said here –
- I accept that it is more difficult to establish a breach of the operational duty than mere negligence. This is not least because, in order to prove negligence, it is sufficient to show that the risk of damage was reasonably foreseeable; it is not necessary to show that the risk was real and immediate. But to say that the test is a high one or more stringent than the test for negligence does not shed light on the meaning of “real and immediate” or on the question whether there was a real and immediate risk on the facts of any particular case.
- It seems to me that the courts below were clearly right to say that the risk of Melanie’s suicide was “real” in this case. On the evidence of Dr Caplan, it was a substantial or significant risk and not a remote or fanciful one. Dr Caplan and Dr Britto (the claimants’ expert psychiatrist) agreed that all ordinarily competent and responsible psychiatrists would have regarded Melanie as being in need of protection against the risk of suicide. The risk was real enough for them to be of that opinion. I do not accept Miss Carss-Frisk’s submission that there had to be a “likelihood or fairly high degree of risk”. I have seen no support for this test in the Strasbourg jurisprudence.
- As for whether the risk was “immediate”, Miss Carss-Frisk submits that the Court of Appeal failed to take into account the fact that an “immediate” risk must be imminent. She derives the word “imminent” from what Lord Hope said in Van Colle v Chief Constable of the Hertfordshire Police para 66. In the case of In re Officer L para 20, Lord Carswell stated that an apt summary of the meaning of an “immediate” risk is one that is “present and continuing”. In my view, one must guard against the dangers of using other words to explain the meaning of an ordinary word like “immediate”. But I think that the phrase “present and continuing” captures the essence of its meaning. The idea is to focus on a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future.
- I think that this approach is supported by some of the Strasbourg jurisprudence. In Opuz v Turkey (2010), para 134, the court concluded that there was “a continuingthreat to the health and safety of the victims” (emphasis added) and, therefore, that there was an immediate risk. In Renolde v France (2009) 48 EHRR 969, the deceased had attempted suicide 18 days before his death and thereafter continued to show signs of worrying behaviour, but made no further attempts at self-harm. The court said at para 89: “Although his condition and the immediacy of the risk of a fresh suicide attempt varied, the court considers that that risk was real and that [the deceased] required careful monitoring in case of any sudden deterioration.” The risk of death was sufficiently immediate for the article 2 claim to succeed. It was not necessary for the risk to be apparent just before death.
- In my view, the Court of Appeal were right to say that the risk of suicide in the present case was immediate when Melanie was allowed home on 19 April 2005. There was a real risk that she would take her life during the two-day period of home leave. That risk existed when she left the hospital and it continued (and increased) during the two-day period. That was sufficient to make the risk present and continuing and, therefore, immediate. The judge gave no reasons for reaching the opposite conclusion.
- Finally, there is the question of breach of the duty. There is no doubt that the trust was or ought to have been aware of the risk. Did they take all steps reasonably necessary to avoid the risk? Miss Carss-Frisk submits that Dr Meagher had a “margin of discretion” which was wider than the law of negligence allows so that the trust’s admission of negligence should not automatically lead to a finding of breach of the article 2 duty. Bearing in mind the low levels of risk found by the judge, she submits that it was within Dr Meagher’s margin of discretion to consider that it was appropriate for Melanie to go home on 19 April 2005.
- I cannot accept this submission. The standard demanded for the performance of the operational duty is one of reasonableness. This brings in “consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available”: per Lord Carswell in In re Officer L (2007) para In this case, it also required a consideration of respect for the personal autonomy of Melanie. But it was common ground that the decision to allow Melanie two days home leave was one that no reasonable psychiatric practitioner would have made. In these circumstances, it seems to me that recourse to the margin of appreciation is misplaced. The trust failed to do all that could reasonably have been expected to prevent the real and immediate risk of Melanie’s suicide. The Court of Appeal were right so to hold.
SO WHAT DOES THAT ALL MEAN?
It’s a lot of words, isn’t it? Let me try to summarise that now I’ve laid it all out.
To determine whether there is an A2 duty to mitigate the risk of suicide (or homicide to a third party) –
- “Imminence” is of someone’s death is not the test … so get that out of your mind straight-away!
- Is about whether there was a “real” risk – which does not necessarily have to mean the risk of death is likely, merely that it is “substantial” and not a trivial risk.
- The risk must be “immediate” risk, which does not mean “imminent”.
- Immediate means –
- The risk must be “present”, i.e. the must be known and in play at the point of the alleged breach of duty, not something which could or does emerge later.
- The risk must be “continuing”, i.e. ongoing after that breach even if the risk may vary or fluctuate over time, following the alleged breach of duty.
In other words – real and immediate risk to Melanie began at the point she left hospital and it was present and continuing from that point onwards. It was not confined to the moments before she tragically took her own life days later. Furthermore, where Lord Dyson talks of “substantial” risk, he is agreeing the risk to Melanie – later determined to be that 5-20% risk of suicide – was substantial. The threshold is, therefore, lower than some may think.
So where a call handler receives a 999 from a worried relative or professional about someone at risk of suicide, careful consideration must be given to what the caller is saying and meaning. Attention must also be given to what information the police may already have on that person or that situation, to determine whether there is a “real and immediate” risk which is “present and continuing”. For example, relatives or professionals may not know a person was recently bailed from police custody for a serious criminal allegation and if the police do know that to be true, it may add weight to the concerns being flagged by the caller.
I’ll say this one more time, because it’s the issue which keeps coming up: the perceived “imminence” of someone’s death is not the test. Someone who is thought to be suicidal may have gone for a walk or a drive in a context that makes us think they’re not necessarily just aiming to find the first suitable location to end their life as soon as possible but the situation can still amount to an A2 obligation because of the “immediate risk to life (which is present and continuing)” even if it is not imminent.
PRESENT AND CONTINUING
This is where some of the questions will lie in the future, if courts have to untangle whether an A2 operational duty applied to a situation which may not had the response some may have hoped to see. Will call handlers and front-line officers know and understand the distinction between “immediate” and “imminent” and will they understand what “present and continuing” means in practice and how to apply it? Phone calls to 999 in my experience are often vague and limited in information. For example, from an Emergency Department, “We’ve just had a suicidal patient leave ED before treatment” or “leave after a Mental Health Act assessment because there was no bed and they’re suicidal”. Those all-too-brief sentences are not enough to confidently dismiss any A2 obligation – the background circumstances may well mean it’s in play. So with such a call, it will be necessary to ask further questions and secure more information before reaching a view. Dismissing any duty act based on such limited information could be tragic in its consequences and incur liability for a failure to act.
So I worry about this: hence a further, detailed post on the topic after seeing questions raised on social media by police, mental health professionals and service users alike, wondering what “present and continuing” means in practice and how will it be interpreted. It is so often confused or left explained only vaguely, I think we do have to worry about it.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2024
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk
Mental Health Cop 